Tijdschrift voor Privaatrecht

The notion of “parenthood” as it applies in the civil law of Belgium is not defined as such. On the basis of the role played by this institution in society, it is defined in Chapter 1 of this paper as “the acquisition, exercise and loss of all such rights and obligations as are held over children by certain persons, in particular their relatives”.

Belgian family law organises parenthood by dividing it into two distinct container categories, i.e. filiation and adoption. Within these categories, all the functions associated with parenthood are awarded to two parents on an indivisible and exclusive basis. However, both filiation and adoption are experiencing heavy pressure from the decisions of the Constitutional Court, which are thoroughly analysed in this contribution, more particularly in Chapters II and III. Clearly, the Constitutional Court is seeking to abandon the straitjacket in which the current legislation imprisons parenthood, and to move towards a system based on the weighing up of the concrete interests involved. This approach goes hand in hand with the way in which parenthood has evolved from a solid status relationship towards a more fluid set of personal ties.

In this contribution, the author defends the proposition that this represents a positive development, and that the law needs to adjust accordingly. Thus the courts will be in a better position to give prophylactic and positive support to the vulnerable entity that is the family, with the interest of the child being the main consideration.

On this basis, the author proposes that a new chapter, entitled Parenthood, be inserted in the Civil Code. Parenthood would be acquired as a package deal based on a parenthood project, acquired through natural procreation, medically supervised reproduction (including commercial surrogacy) or adoption. This could serve to avoid the problematic process of balancing the biological issues and social reality, and at the same time to mitigate the mater semper certa est rule.

In addition to advancing this proposal based on parenthood as a package deal, the author also highlights the fragmented regulation by law of other important relationships between child and adult, which only covers some of the functions of parenthood. In the first instance, paternity could be made transparent through the creation of a paternity register in addition to a parenthood register. The law could also give some recognition to those parties who bring up or educate the child, by conferring parental authority on persons other than those involved in the parenthood project. Such persons could also have certain financial responsibilities imposed on them.

The necessarily pluralistic approach towards parenthood outlined above will result in parenthood being fully dissociated from the partner relationship between the parents – even in relation to the pater is est rule – when it comes to divorce or stipulating the conditions for adoption. The necessarily complementary approach inherent in these proposals means that the new forms of parenthood need not exclude their previous incarnation, but complement the latter through a system of multiple parenthood.

It is only by approaching parenthood from a position beyond the currently accepted assumptions that the necessary reforms can be contemplated. This contribution merely provides a multidisciplinary starting point for this endeavour.

The law on unfair terms provides two individual and curative remedies on which the consumer can rely in order to extricate him/herself from unfair terms in contracts with a business undertaking. On the one hand, there is the individual, court-imposed sanction in the strict sense, i.e. nullity/voidance (in Belgium); on the other hand, there is the rule which stipulates that, where there is doubt about the meaning of a term in a consumer contract, the interpretation most favourable to the consumer shall prevail.

The introduction of the individual, court-imposed sanction has produced a major impact on the Belgian legal order. Although the implementing provisions make reference to nullity (voidance), there currently appears to be general acceptance that the EU law-based sanction cannot simply be classified under the traditional, national categories. This is a consequence of the sizeable amount of case law produced by the Court of Justice on this subject. The Court is defining the scope and substance of this sanction with increasing levels of precision. It would appear that this sanction is being attributed a certain functional and social side aim, a dissuasive effect. In pursuing that effect, the Court seemingly uses the image of an uninformed consumer as a benchmark. Therefore perhaps it is desirable to abandon the national approaches and to work towards a unitory EU sanction (‘erasure’) for unfair terms?

Many aspects of this remedy have already been examined by the Court. However, a number of significant issues remain unsolved, including first and foremost the role of the domestic law that applies between parties where no other arrangements have been concluded.

In addition, the terms contained in consumer contracts must be drafted in plain, intelligible language, and where any doubt arises as to their meaning, the interpretation which is the most favourable to the consumer should prevail. For many years, the European dimension of the transparency requirement was mired in total obscurity. However, a number of surprising Court of Justice judgments now seem to indicate a trend towards an extremely broad interpretation. At all events, contract terms should be drafted transparently, in such a way as to enable ‘the average consumer’ to foresee the economic consequences which derive from them, and thus to have more information at his/her disposal in order to decide whether he/ she wishes to be bound by the contract. In spite of this, there remains a great deal of uncertainty on the subject. Thus, for example, it remains unclear how a lack of transparency in the contract should be sanctioned – even though it has been argued that a deficiency in transparency should automatically be regarded as being unfair.

Finally, the interpretatio consumptori plurimum favorens principle appears to be a rarely used ‘remedy’ (intended in a broad sense) that may apply to unfair contract terms. Unlike the individual, curative court-imposed sanction, i.e. nullity/voidance, this interpretation rule has no functional aim. It therefore remains to be seen to what extent the European case law on the former sanction will be applicable by analogy. As regards the question as to which consumer is to be seen as the benchmark for the most favourable interpretation, it would appear that this should be the concrete consumer who is actually a party to the dispute, having been thoroughly informed by the court as to his/her legal position.

Prompted by two Supreme Court (Hof van Cassatie) decisions concerning the nullity of excessive competition clauses in ordinary contracts (Cass. 23/1/2015 and Cass. 25/6/2015), this paper examines the scope of contractual nullity in this context. In particular, the key question is the following – what are the factors and rules which determine whether, and if so to what extent, a legal act which is vitiated by a ground of nullity remains capable of producing certain legal consequences? In his endeavour to answer this question, the author compares the current Belgian solution with those which are normally applied in present-day German, Dutch, Spanish and Italian law.

In the second chapter, the author discusses the applicable Belgian law in this field. Because the issue under review is constantly analysed on the basis of the notions of “partial nullity”, “conversion” and “reduction”, these three concepts play a central part in assessing this current state of the law. As regards these three notions, the author clarifies (a) whether they are accepted under Belgian law, (b) what is their legal basis, (c) what are the criteria which determine the conditions in which they may be applied, and (d) what are the consequences of the appropriate use of these concepts.

The current state of the law as described in the previous paragraph is subjected to critical assessment in the next chapter. The author argues that partial nullity, reduction and conversion must all be accepted by the relevant Belgian law and that they have their basis in the favor negotii principle, i.e. the principle which aims to maintain the contractual relationship. The criteria applied can, according to the author, be refined further by making use of, inter alia, a number of subtle distinctions which can be found in the German law. These German positions, moreover, show that the Belgian literature on the subject wrongly fails to give any attention to the burden of proof question, which – as is indeed the case in other legal areas – is of crucial importance.

This analysis of the current state of the law indicates that the current Belgian approach is insufficiently precise in substantive terms, and is deficient in structural clarity. This is why, in Chapter Four, the author proposes an alternative approach. To this end, he takes as his starting point two leading principles in this field, to wit proportionality and favour negotii. He takes the view that the former provides an answer to the question whether legal act is null and void at all because of a rule infringement. If the conclusion is that this is indeed the case, the supplementary question arises whether the legal act can still have legal consequences in spite of its nullity – a question which is answered by reference to the favour negotii principle. Having provided a brief overview and made a legislative proposal, the author explains the reasoning to be followed on a step-by-step basis and illustrated by examples.

The author concludes this paper by applying the proposed approach to the two Supreme Court decisions which prompted this contribution, and examines whether the disputed competition clauses could still remain operational.

Subjective rights can be divided into two major categories, i.e. claim rights (proprietary rights, intellectual rights, rights to performance from a debtor and personality rights) on the one hand, and powers on the other hand. Powers (Dutch literature uses the term “wilsrechten” as well as “bevoegdheden”) give their holder the authority to change, discontinue or create a certain legal situation unilaterally (by performing a unilateral legal act). Exercising such a power automatically causes the relevant legal consequences to take effect, without reliance on any action on the part of the party whose legal position could be influenced by it. In other words, the third party in question will be subjected to the legal consequences of the powers exercised as a matter of course. Or, to put it yet another way, the holder of a power is entitled to impose the relevant legal consequences – i.e. changing a legal position – on third parties. This is where powers differ from the traditional category of claim rights (proprietary or creditors’ rights). This is because claim rights assume the existence of a legal obligation on the part of a debtor or of a third party, which means that non-compliance of such a legal obligation will at all times frustrate the rights of the holder of the claim right.

From the author’s analysis, it emerges that the number of subjective rights capable of being described as powers is particularly large. One need only consider, for example, the right of option, the right of first refusal, a contracting party’s right to decide, powers of attorney, the right unilaterally to terminate or dissolve an agreement, the ius agendi, shareholders’ voting rights, the right to accept or reject an inheritance, the right to enforce, confirm or waive a subjective right, etc. In many cases these rights do not arise independently, but are combined with other subjective rights/claim rights.

Powers may arise on the basis of substantive legislation, of an agreement, or of a court decision. They are exercised through a unilateral legal act, which may be subject to communication or receipt. The holder of a power is, moreover, free to exercise, or to refrain from exercising, the power in question – he/she cannot be compelled to do so. Because the legal consequences of a power take effect automatically and without any intervention from the party made subject to that power, considerations of legal certainty dictate that the exercising of a power be unconditional, irrevocable and indivisible. As is the case with claim rights, the exercising of powers is subject to the rule prohibiting the misuse of rights – the holder of a power may not exercise it in a way which clearly exceeds the normal way of exercising it. Powers may be forfeited by transfer, waiver or through the extinction of a time limit.

Action by the public authorities is traditionally associated with unilateral decisionmaking of an individual or regulatory nature. However, this view of intervention by the public authorities is essentially divorced from reality. In addition to exercising such power, the public authorities are, with increasing frequency, using private law instruments in order to serve the public interest. This paper will not concern itself with the various reasons for this development, but concentrates on the legal issues it raises. This is because such practices confront the lawmakers and the courts with a considerable challenge. What are the limits within which the authorities may make use of the private law, and what are the rules which govern these private transactions – should they be governed by the private law, or should rules of public law apply? The authors revisit the old dividing line between public and private law, and examine the way in which the rules and principles that apply on both sides serve the public interest.

The question whether the public authorities are allowed to use private law instruments in order to achieve their objectives to serve the general public or to organise a public service has traditionally been answered in Belgium by reference to the “two track” doctrine (tweewegenleer). According to this approach, the public authorities are in principle free to serve the public interest by resorting to private law rather than using their special prerogatives. However, they are only allowed to take the private law route whilst observing the limits set by essential public law principles, such as the principles of speciality, legality and good administration, as well as the legislation governing the public services. It is clear that, under Belgian law, this issue cannot be dissociated from the question as to which law shall apply.

Where the public authorities make use of contractual instruments, these contracts shall in principle be governed by private law. However, this assumption is not carried to its ultimate conclusion. The undiluted theory that the agreements concluded by the public authorities are governed exclusively by private law is at odds with reality. Even in the absence of legislation that causes the agreement to depart from private law, the specific nature of the legal relationship in question will regularly cause the courts to treat it – at least in part – as regulatory action, more particularly where it concerns the performance of a public service. The willingness to do so contrasts sharply with the inadequate legal framework which is available to the courts for this purpose.

Nevertheless, in many cases public law corrections will not be necessary in order to serve the public and other interests. The same result can often be achieved by adopting a private law approach and by relying on general principles of private law. Highly instructive in this regard is the De Leener and Ballon decision, in which the Council of State (the Belgian Supreme Administrative Court) indicated its inclination not to exclude the thesis that the provisions of the Civil Code governing the performance of contracts are the expression of the overarching reasonableness principle that is common to public and private law.

Accordingly, rather than focusing blindly on the contrast between private and public law, it seems more constructive to concentrate on their similarities and the manner in which they complement each other. As the public authorities become increasingly conscious in applying private law in order to serve the public interest, so the need for corrective mitigation based on the public law diminishes. Instead, public and private law interact as communicating vessels in this regard, as the yin and yang of our legal system.

Transport is both the lifeblood of e-commerce and its Achilles heel. Whilst being able to have goods ordered online delivered to one’s home represents a major competitive advantage for e-commerce, it nevertheless carries many risks. In the course of delivery, packages are sometimes damaged, lost or arrive late. By Directive 2011/83/EU, the EU has made it compulsory for the webshop to bear the risk of any damage or loss. The risk only passes to the consumer at the moment when physical possession is acquired by him/her. In addition, the consumer has the right to terminate the agreement in the event of late delivery. In this article, the author seeks to establish to what extent this Directive exposes the webshop to liability. In principle, the webshop will not perform the carriage of the goods itself, but will avail itself of a parcel delivery service. Assuming that the webshop is able to recover the cost of the damage from the carrier, the impact of the Directive on liability imposed by it on the webshop will remain limited. The laws relating to transport and to consumer protection are to a large extent mandatory, which only provides the webshop with limited scope for contractual variation of the statutory rules on liability.

These statutory rules do not in many respects appear to be capable of neutralizing the risk imposed on the webshop, so that the latter will to a significant extent itself bear the risk of damage incurred in the course of carriage. This is more particularly the result of the relevant procedural rules, the rules which govern the liability of the carrier, and those that relate to the extent of the compensation which the webshop is capable of claiming from the carrier. Moreover, the complex logistics involved in parcel delivery will ensure that, because of the specific structure of transport law, there could arise some uncertainty as to which rules are applicable.

The first cause of a liability exposure for the webshops lies in the different notification periods. Whereas the webshop is obliged to notify the carrier of any damage immediately (in the event of visible damage) or within a week (in the event of invisible damage) in order to enjoy the benefit of the presumption of liability vested in the carrier, the consumer/buyer has two months as from the time at which the fault is discovered. Moreover, any damage which arose during the first six months is deemed to have been present at the time of purchase. Accordingly, the burden of proof will be on the webshop under both these agreements where the damage has not been notified immediately by the consumer.

Moreover, the rules governing the carrier’s liability are also capable of exposing the webshop to liability on several counts. Thus the consumer shall, where no time limits for delivery had been expressly agreed, be able to terminate the agreement even before the webshop had the opportunity to claim compensation against the carrier on account of late delivery. In addition, the consumer may enforce his/her right of withdrawal in the event of late delivery. Since the consumer is not obliged to give reasons for his/her withdrawal, it will be virtually impossible for the webshop to provide evidence that the withdrawal was caused by the late delivery, and that the latter must therefore be regarded as loss caused by late delivery. Where the goods are unloaded on the access area, especially that of third parties, may under certain conditions cause the compulsory period during which the carrier is held liable to end, even where the goods have not been physically delivered to the consumer. As a result, the webshop will continue to bear the risk under the contract of sale, what could cause a liability exposure to the webshop if damage occurs before the moment the consumer takes the physical possession of the goods. Finally, the rule in relation to all the three causes of damage is that, whilst the carrier may rely on the grounds for exemption, this option is not open to the webshop in relation to the consumer. The importance of the last-named difference must, however, be put into perspective, given the fact that a force majeure defence is seldom accepted by courts.

The restrictions on the recoverable damage by the webshop represent the third major factor causing its exposure to liability. In the event of loss and late delivery, compensation shall be restricted to physical damage, which means that any other type of damage incurred by the webshop will not be considered. Even more important, and more particularly in relation to electronic consumer goods, are the limits to the compensation. Under CMR, compensation is limited to +/- €10.5 per kilogramme, which frequently amounts to a de facto exemption. In the event of late delivery, the situation is even more problematic, given that in such cases compensation is limited to the freight. Although full compensation remains possible in cause of (a fault equivalent to) wilful misconduct, the prospects of success for such claim are very limited, at least in Belgium and The Netherlands.

Finally, it would appear that the precise extent to which webshops are being exposed to liability is difficult to predict with precision, given that different transport regimes are potentially applicable. Parcel delivery frequently involves agreements combining several different means of transport or leaving the method of transport unspecified. As different regimes exist per mode of transportation, in such circumstances it will not be certain which rules shall apply. In addition, the relevant international treaties are subject to divergent interpretations, which can also have a significant impact on compensation levels. Since the various treaties governing transport do not allow the parties to stipulate which law shall apply exclusively, this means that here too, the parties in question will, when concluding the agreement, not be able to anticipate which interpretation shall prevail.

Accordingly, the risk incurred for any damage caused during parcel delivery is to a very considerable extent incumbent on the webshop. Although the various international transport agreements provide a number of mechanisms which enable this exposure to liability to be restricted by contract, the limited awareness of any risk by the webshop, or even a large measure of indifference towards risk on the part of the latter, will ensure that such mechanisms will hardly ever be used. Self-insurance may not pose a problem for a major webshop, but could have a considerable impact on the smaller operators. It is therefore recommended that appropriate legislation be adopted in this area. Moreover, if the webshop is able to pass the relevant compensation or costs onto the carrier, this increases the chances that he/she will adopt a more accommodating attitude in response to any claim by the consumer based on damage incurred in the course of carriage.

In spite of the absence of empirical data, the general context tells us that an increasing number of litigants are going to court without a lawyer (i.e. acting pro se). There are two explanations for this phenomenon. On the one hand, going to law has in recent years become considerably more expensive as a result of, inter alia, lawyers having been made subject to VAT and the new system of court registration fees. On the other hand, the legal aid sector has been coming under heavy financial pressure, and access to lawyers operating free of charge has become increasingly restricted. This means that an increasing number of people are in danger of falling between two stools, in that they are too wealthy to be able to claim free legal assistance, but not wealthy enough to afford a lawyer.

This paper examines the way in which the Belgian law of civil procedure treats lawyerless litigants, and the extent to which such treatment meets the standard set by Article 6(1) of the ECHR. Does the law in question provide pro se litigants with sufficient support, or are the latter faced with needless obstacles in their quest for legal equality?

In Part One, the author locates the problem in the context of the right to a fair trial as contained in Article 6(1) ECHR. Here, two aspects of this right come to the fore – the right to access to justice, and the right to equality of arms. The member states are free to decide the way in which effective access to the courts is to be achieved. To this extent, maintaining an adequate legal aid system and facilitating pro se litigation are communicating vessels in that, as legal aid is reduced, so the member states need to increase their concern for the position of the lawyerless litigant.

Part Two deals with certain aspects of the Belgian law of civil procedure which have a direct impact on pro se litigants. The author deals successively with the rule prohibiting the judiciary from giving legal advice; possible legal representation by non-lawyers; the court’s power to prevent oral pleadings; the formalities required of court submissions, and the proactive role the judge is allowed to play.

In Part Three, the author casts his eyes abroad. He examines the way in which lawyerless litigants are treated in the Netherlands and in England & Wales. There is also inspiration to be found in the European law of civil procedure. This applies in particular to the European Payment and Small Claims Regulations, given that these were expressly adopted with the pro se litigant in mind.

The general picture painted by the analysis featured above allows the conclusion that the position of the lawyerless litigant in Belgium is not that unsatisfactory after all. Its law of civil procedure contains a number of support structures which, with due pragmatic flexibility, are applied to the lawyerless litigant’s benefit. Before the lower courts, the pro se litigant receives even greater levels of support. However, this does not mean we can afford to be complacent here. At a time when the rules on court procedure are constantly being adjusted, with efficiency being the key word, care must be taken that the pro se litigant does not silently disappear between the cogwheels of the judicial system.

All-sums retention of title entails extending the effect of retention of title in order to guarantee claims other than those which are inherent in the delivery of the item sold, i.e. the claim for payment of the sale price and its attendant charges. Such all-sums retention of title is not valid under current Belgian or French law, the latter systems requiring a specific link between the item supplied and the guaranteed claim. However, both English and German law accept that such an extension of retention of title can be valid. In the Netherlands, the applicable legislation has already extended the scope of guaranteed claims beyond payment of the sale price – claims arising from work performed or from defective performance of the agreement also fall within their ambit. A number of Dutch authors are of the opinion that all-sums retention of title is accepted as a general rule, but this view is not without challenge.

General recognition of all-sums retention of title would give suppliers the additional opportunity to guarantee future claims arising under a long-term trading relationship. The same degree of priority as that provided by ordinary retention of title would apply by extension to other claims. In this contribution, the author examines the possibility of creating an all-sums retention of title under Belgian law in the light of the new Law on Pledges, and highlights the policy choices which would be needed for this purpose. In so doing, the extended retention of title would be confined to claims which remain linked to the creditor in his capacity of supplier. Thus the overriding priority provided by retention of title would not be available to any claim whatsoever. In addition, the author advocates that the ability to plead allsums retention of title be made dependent on its entry in the Register of Pledges. Finally, a limit would be imposed on the continued reliance on retention of title by the supplier – as from the moment when no further claims were extant against the buyer, the latter would become the definite owner of the item sold, and the all-sums retention of title would no longer apply. It is not desirable that the seller of an item should, at a later stage, once again be able to rely on his retention of title for a new claim. Provided that these conditions are met, all-sums retention of title should be capable of legal recognition.

The action in annulment of a company decision with external effect is, for the shareholder, the functional equivalent of that which the revocatory action (actio pauliana) means for the creditor. Both types of action have the same purpose, i.e. to police the manner in which powers held over property in which the creditor has a financial interest are used. Moreover, both actions have a similar effect, in that any transaction which adversely affects the financial interests concerned will be neutralised. The difference resides in the conditions under which the action can be brought. The revocatory action is one which can be brought directly against the fraudulent transaction concerned. It is precisely because shareholders are prevented from bringing such direct actions that the action in annulment makes it possible to challenge the disputed transaction by challenging the decision on which that transaction was based (and which, by definition, has external effect).

However, there remain some significant differences between the revocatory action and the action in annulment, both as regards the sanction attached to them and the conditions in which they can be exercised. Most of these differences can be explained by comparing and contrasting the claim vested in a creditor (fixed claim) with that which is vested in the shareholder (variable claim). However, this does not explain why evidence of complicity on the part of the third party involved is required for a successful revocatory action – at least when dealing with a transaction for valuable consideration. The rationale behind this requirement is to protect third parties who can be credited with a legitimate belief in the appearance created by the debtor.

By describing the consequences of the annulment of a decision with external effect for third parties as an issue concerning the broader question as to the which legal acts are attributable to the company, the author makes it clear that the third party will also be protected against the annulment of the underlying company decision. As is the case with revocatory actions, this protection will only cease to apply where complicity in the disputed act can be attributed to the third party. This parallel between the revocatory action and the action in annulment of decisions with external effect has enabled us to conclude that a decision which had already been carried out in relation to a third party while being taken with power of representation, may only be annulled after evidence of bad faith has been supplied. The fact that the revocatory action requires no evidence of bad faith in relation to transactions without consideration does not contradict this. Merely having infringed the restriction to acts for profit can be invoked against third parties regardless of whether this was done in good or bad faith, given that we are dealing here with a statutory restriction of the power of representation (although this does not mean that the ‘but de lucre’ is still required to have this function). The essential point is that the revocatory action and the action in annulment of decisions with external effect are both functionally equivalent processes. In that case, the degree of protection enjoyed by the defendant third party should also be equivalent in both cases. Just as the revocatory action is a powerful tool in the creditor’s hands against collusion between his debtor and any third party, the action in annulment of decisions with external effect represents for the shareholder in cases of bad faith of a third party an effective action against decisions (carried out) of his debtor.

In this contribution, the author seeks to establish whether the prohibition of fideicommissa, as featured in the 1804 Code Napoléon, can still be maintained two centuries later. More particularly the author concentrates on fideicommissary donations, which come under the general heading of “transgenerational donations”. The latter are donations whereby the donor requires the beneficiary to retain the donated assets during his lifetime, and to transfer them to a second beneficiary when he dies. Thus the grantor determines the succession of the donated assets over several generations. This retention of control can be very attractive from the point of view of estate planning.

Not every legal system, however, allows transgenerational donations. Thus the Code Napoléon subjected transgenerational donations to an unconditional prohibition as a matter of public policy. This prohibition continues to apply to this day under Belgian law. French legislators, by contrast, decided in 2006 to abolish this prohibition as featured in the Code Napoléon, on the grounds that, inter alia, they wished to give more scope for the donor to exercise his freedom of action. Moreover, there are a number of legal systems under which transgenerational donations have at all times been lawful, as is, for example, the case in South Africa.

This contrast in the treatment of transgenerational donations in the various legal systems casts new light on the question whether a prohibition of transgenerational donations remains tenable in this day and age. The traditional arguments raised in justification of such a prohibition have lost a great deal of their plausibility. Moreover, alternative legal transactions such as the donation of usufruct and of bare ownership, or the fideïcommis de residuo, are incapable of producing the same result. The author therefore concludes that there is no longer any compelling reason for maintaining the prohibition of transgenerational donations, so that the latter should, in this day and age, be fully lawful.

Loss assessment gives rise to a host of questions which relate to the time elapsing between the tortious event and the compensation awarded for the loss incurred. Between these two points in time lies the moment when the court has to assess the loss. This passage of time affects the court’s assessment of the existence and size of the loss incurred. The relevant legislation provides no firm guidance. Time-related issues are solved by reference to the case law of the Hof van Cassatie (Supreme Court). It is especially this case law which forms the basis for this contribution, which takes as its starting point a study of the notion of “loss”, as well as a number of fundamental principles underlying the law on compensation, more particularly the full compensation requirement and the actual loss assessment principle.

The effect of the passage of time that follows the tortious event gives rise, in the first instance, to the question of the point in time on which the court must focus in order to assess the loss. Under Belgian law, loss assessment is performed at the point in time which is as close as possible to the date on which the loss is effectively rectified. This is normally the time at which the court makes its decision. The date of this decision therefore plays a crucial part.

In addition, various events which occur simultaneously with, or subsequently to, the tortious event are capable of increasing or reducing the loss suffered. The relevant legislation does not specify what are the events which the court needs to take into account. Events are capable of aggravating the loss both before and after the court has made its assessment. In the former case, the extent to which the increased loss is capable of giving rise to compensation is governed by the rules on causation. In the latter case, it is the content and authority of the court’s decision which will be conclusive. As regards the events which occurred after the tortious event, the Supreme Court will apply the rule that these should not be taken into account where they are unrelated to the fault and/or the loss. However, this rule does not invariably provide an acceptable solution, and is consequently not always applied in a consistent way. This is, inter alia, the case in relation to such benefits as are derived from a new relationship engaged in by the partner of a deceased victim, or the benefits accruing to the victim because of the contributions made by third parties, such as material assistance or payments. In the latter case, any pensions awarded to a deceased victim’s partner and not debited to the compensation allocated are a particular source of contention.

The court must determine the compensation that is due both for the loss which had already occurred at the time of the assessment, and for any loss which could still arise in the future. The distinction between past loss and future loss has given rise to different methods of loss assessment. Where it has been ascertained that the victim will continue to incur loss in the future, it is impossible to determine with absolute certainty how such loss will develop. This is why the court will, to a greater or less extent, be compelled to disregard this element of uncertainty. The courts are seeking ways to reconcile this uncertainty with a concrete and precise determination of the amount of compensation to be awarded. The instrument which is most frequently used to this effect is capitalisation. Thus the material loss incurred because of permanent unfitness for work on account of the reduction in the victim’s economic capacity is capitalised on the basis of his/her earnings, even though he/she has not incurred any loss of income and his ability to exercise his profession in the future remains uncertain. Capitalisation is also increasingly used in relation to loss which, until recently, was ineligible for capitalisation, such as non-material loss. The courts have hitherto displayed no consistency in this regard.

Loss is a variable phenomenon – the adverse consequences of an event are capable of extending over periods which can be longer or shorter. When assessing loss, it is necessary to compare two positions, i.e. the situation following the tortious event and the situation as it would have been without it – and this seems not possible without having a reference point in time from which to make the assessment. Therefore, to a certain extent, the outcome of the loss assessment can be regarded as a “snapshot”. If the reference point is fixed at a time before adjudication by the court, the question will arise as to what can be, or can still be, the relevance of developments which occur, and information that transpires, subsequently. Under the Dutch law of torts, it is generally accepted that the point in time at which the court adjudicates is that which will be conclusive as far as the loss assessment is concerned. However, there are a number of scenarios under the law of torts which indicate that exceptions to this principle are possible.

Where an ex ante approach is adopted, the loss is assessed as being that which arose at the time of the “initial” loss, i.e. that which was caused at the point in time when the victim’s property is deemed to have been affected by the tortious event. This approach entails that the outcome of the loss assessment will not in itself be influenced by the point in time at which the assessment takes place (i.e. ‘outcome fixation’). The decisive element will be what was to be expected at the point in time at which the loss occurred. The risks and opportunities that existed at that point in time will be factored into the assessment of the loss – as a result, no account is taken of any subsequent events or developments. Thus the size of the loss (and of the compensation for it) will not vary along with any information which transpires subsequently.

The ex ante approach can be recognised when looking at the way in which, in the case of damage caused to property, the resulting reduction of the property’s value is assessed in abstracto, the assumption being that the owner has suffered loss equivalent to the reduction in value of the property involved, prior to and independently of any repairs. This is what is sometimes referred to as “instantaneous loss” – by taking the point in time at which the loss actually occurred as the reference point for measuring the loss of value, any subsequent developments become irrelevant. However, there are circumstances in which that precise point in time at which the damage was actually caused cannot be determined – as is the case where a house is reduced in value as a result of subsidence caused by the extraction of natural gas, which is revealed gradually over time. Where we are dealing with the dissolution of a contract of sale, or with the compensation resulting from the failure to perform a specific contractual obligation – here again, one discerns a method of loss assessment in abstracto which can be regarded as a type of time-based fixation. Under the law of expropriation, all losses are assessed by using an ex ante approach, referring to the point in time at which the expropriation occurred, regardless of the point in time at which the loss was determined by the court, and of any developments which may have taken place in the meantime. Therefore, when assessing loss, it is necessary to take a step back in time and to disregard any events and circumstances which may have occurred in the meantime.

The ex post approach, on the other hand, is based on the loss history to the extent that this has become known at the time at which the loss is assessed, and regardless of whether the developments in question were foreseeable or not at the point in time at which the tortious event took place. It is this approach that, more than any other, complies with the full compensation principle, as well as with the assumption that loss should be assessed in concreto – here, the “permanent insight” principle is applied in order to be able to assess the loss actually incurred as accurately as possible. That is not to deny that, even where this approach is adopted, it is necessary to make an assessment of the situation which would have occurred had the tortious event not taken place – i.e. the situation which, by definition, did not take place. Where an ex post approach has been adopted, the initially expected loss can be whittled down or, instead, increase; accordingly, the timing of the loss assessment can be crucial in this respect.

An ex post approach can be identified where there is an assessment of loss which extends over a certain period and is incurred in successive stages, as is the case not only with loss of income resulting from injury and other forms of forfeiture of earnings, but also with the costs (recurring or not) which are incurred. Where the loss has already been incurred at the time of assessment, that loss can be determined more precisely ex post; any future loss can, by definition, only be assessed ex ante. When assessing continuous loss from an ex post perspective, there may occur not only events that ‘break the chain’ of causation, but also events and developments on the basis of which the factors which were taken as a basis for the frame of reference need to be adjusted accordingly. During a sufficiently long period between the tortious event and the (definitive) loss assessment, certain facts and circumstances may come to light which could not have been anticipated at an earlier point of assessment. Thus time can be both friend and foe for the parties involved. Moreover, the question that needs to be asked at all times is this: what absolute certainty can there be about gradually arising events and circumstances in relation to the hypothetical scenario under which the tortious event never happened?

Where continuous loss is assessed and compensated by a single amount of money paid immediately, the period of loss is to a certain extent ‘converted’ into one point in time at which the whole loss is considered to be suffered. Where such capitalisation occurs, the time-related factors by definition play an important part. (The term “capitalisation” in this context should be understood in the sense of the payment of damages for periodic losses being converted into a fixed sum.) Under Dutch law, it is allowed to use a reference date for capitalisation which falls some considerable time before the court decision – which then gives rise to the question as to how intermediate events and developments should be handled during the period between the reference date and the later point in time at which the damages are being awarded. According to the Hoge Raad (Dutch Supreme Court), the basic principle that the loss must be assessed as much as possible in concreto entails that, when using a reference date for capitalisation in the past, an ex ante approach towards loss assessment should not be adopted.

When assessing non-economic damages, the court is compelled to take all circumstances into account, and more particularly the effects of the tortious event on the victim. Therefore, an ex post approach clearly suggests itself for such loss – given that non-economic loss can generally be expected to continue over a period of time. In the Netherlands, non-economic losses are generally being paid by a single amount of money. However, it is not usual to divide this type of continuous loss into several – future – periods in order to calculate it’s value by using the capitalization method. This “arithmetic” method of assessment seems difficult to reconcile with the “rough” manner in which non-economic loss is being assessed in the first place (‘in fairness’).